Posted on Twitter (July 22, 2024); the Google auto-translate, from the Portuguese, is pasted below.
The Absurdity of Intellectual Property Laws
By: Joakim Book @joakimbook
In a previous article, I explored the absurdity of intellectual property, the unfair and inefficient monopoly privilege it confers on those experienced enough to navigate the legal system well. Because they are non-scarce and non-rival objects, like ideas or sound waves arranged in a specific order, they cannot be property economically speaking. No one can “own” vibes or reasonably punish me for using your grandmother’s recipe for beef stew. (This is also why cultural appropriation is an absurd concept.)
Many libertarians don’t understand this point, as legal scholar Stephan Kinsella @NSKinsella has spent a career dismissing. The mistake is easily made. Once you realize the crucial role that (private) property plays in the economic system – allocating resource decisions and giving rise to market prices and thus profit and loss feedback – it seems an easy leap to extend the logic to intellectual property. It’s in the name, after all. If it is good for society, the economy and social harmony to isolate ownership of houses, t-shirts and drinks to the individuals who acquire them, it should be equally good for us to assign “rights” to the many intellectual products made (songs, poems, DNA assortments) to which these creations therefore “belong.”
The unfortunate name aside, the analogy doesn’t hold water. Property is scarce: it has competing and rival uses, and you can exclude others from using it – at least through the physical use of whoever is currently possessing it. The t-shirt I’m wearing cannot be worn simultaneously by another person; So, in true argumentative ethics form, you must either take it from me violently or (implicitly) accept my claim to property rights over it.
Property rights aspire to social harmony insofar as they prescribe who can use what thing at what time for what purpose. Intellectual property has no such physical limitation, and social harmony is maximized by removing (unfair and immoral) protections for ownership over non-scarce and immaterial things.
Take Johan Norberg, the Swedish author and free trade evangelist who was once my gateway to libertarian ideas. Norberg is an excellent writer and debater with a reach far beyond our regular libertarian quarters: of his latest book The Capitalist Manifesto, Martin Wolf of the Financial Times went so far as to say that Norberg is “perhaps the world’s most effective defender of capitalism.” free market.”
But we all need to kill our intellectual heroes, and part of growing up is realizing where those who came before us have gone astray. Norberg is “deadly” wrong in his position on intellectual property, thinking it is a prerequisite for capitalism to function – as if the patent system somehow created the modern world or maintained our standards of living. In The Capitalist Manifesto, he writes that “companies would not be interested in investing so much technology in other parts of the world if everything could be instantly copied by the producer across the street.”
Well, if the innovative production you are running is so simple that it can be easily copied and surpassed unless protected by a violent thug, then perhaps the commercial advantage you have built up is much smaller than you think. According to your own reasoning in later chapters on subsidies, the deal therefore deserves to be outdone: put everything open source, etc.
The infrastructure that allows artists and innovators to hold rights to extract fees from their creations are characteristics of a legal system, not economic reality, and – with the stroke of a legislator – could be different. How to monetize intangible and non-rival things? Musicians want to eat, just like writers or engineers.
Now, the words that I put in a certain order have no economic value, as the joke goes, the high school student taps her dictionary before an essay deadline and says reassuringly to herself: “All the words are here. I just need to find the right combination.” No one owns the words listed on the dictionary pages, and once they are collected, anyone can recreate them – speak them, sing them, recite them at a wedding, or publish them (online or in physical form).
The physicality of books and magazines themselves takes us to the analog world of scarcity: a unit cannot be consumed and enjoyed while it is being consumed by someone else. Thus, the magazine has a market price, as it consumes scarce resources. However, magazines only sell — or, by extension, keep their subscribers — if the content they deliver is worth more to the consumer than what they paid for it. So, the content – the ordering of the words – has to be good.
How to get good word orders that consumers like? Anyone – especially in the age of generative AI – can write bland, grammatically sound text on some topic, so a magazine must have access to the talent or elegance, creativity or unique information that certain writers possess – dangling a monetary carrot in front of them, whether as employment contracts or freelance work. The service provided is not the words themselves, as they all exist in the ether available to anyone with a dictionary, but the creativity of the assembly. And it is given as a donation or reward, not in payment for transferred assets.
Let us take another illustration of free information, where the order itself is crucial and incompatible with copyright: the game of chess. You cannot patent or copyright a chess opening, even if the system or series of moves was invented (well, discovered!) by a specific player and popularized to the point where his name is attached to the moves. Don’t chess players deserve compensation for their hard, innovative work and for promoting the game by making a unique and specific series of impressive moves? No. The reason is that rent extraction is not viable for things that are not rivals. Magnus Carlsen, probably the greatest player of all time, receives no compensation when someone plays the Carlsen Variation of the Sicilian Defense. (Nor does the island of Sicily.)
Chess openings exist in the ether, in human minds, available for anyone to play. No one (bar authorities) can physically exclude you from moving pieces on a board in a certain order in a game in which you and your opponent are subject to specific rules. If you found an opening upgrade that gave you a unique advantage, it was there free for anyone to find. You found it in the information space, among the dozens of duodecilion (1040) possible positions in chess.
Russian novelist Fyodor Dostoevsky found the words of his novels in language space, another information space made up of somewhere between 150,000 and 200,000 key words, he used publicly available information in a specific order to assemble Crime and Punishment, which anyone in principle could have found. This is why we socially added his name to the book title, but did not (and should not) reward him or his descendants financially for their find. If authors or musicians can monetize their non-rivalrous creation in other, indirect, and economically fair ways, congratulations to them!
Just as Spotify found a technical way to monetize music – allowing users to easily save, maintain and manage playlists across devices – the Chessable @chessable service has shown in recent years how the intangible, information-free world of openings chess can be monetized. All sorts of top-100 chess grandmasters release studies, complete with worksheets and lectures that Chessable users pay for. Neither the company nor the players (authors) “own” the move order, and yet the service continues to function, as these masters must always stay on top of their game. If they don’t, they are outperformed by someone who has a deeper understanding of the opening variations played.
Consumers are willing to pay not for the opening itself, but for the chess grandmaster who walks them through it – with notes and videos and illustrations – and for convenient software to practice with. These things are just as exclusionary as any other subscription or pay-per-use online service. Again, it doesn’t work under copyright. Likewise, concert-goers are happy to pay for limited-time, physical access to an artist performing her songs – like Taylor Swift @taylorswift13.
As Spotify @Spotify showed in the early 00s, there was a way to monetize a free resource that didn’t rely primarily on copyright: In the early 00s, young people—cash-strapped, time-rich, and tech-savvy—fortunately they made some effort to acquire music without spending money.
If you are in the business of creating “intellectual property,” try to monetize your creations in honest ways rather than resorting to the crutches with which the legal system enforces economic reality.
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